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Police misconduct: McKinney plans to again push for transparency

Should Brady lists be public?
Posted at 6:54 PM, Sep 16, 2022

OMAHA, Neb. (KMTV) — The last piece of policing legislation State Senator Terrell McKinney helped pass accomplished much less than he expected.

He said, in a 3 News Now report last month, he thought the list posted on the Nebraska Crime Commission’s website would have many more officers, including active duty officers. Instead, it lists former, decertified officers.

A cursory reading of the law would suggest it would include all officers with verified "serious misconduct" on their record.

3 News Now Investigation: Nebraska’s ‘officer misconduct’ list won’t have active law enforcement

Nebraska’s ‘officer misconduct’ list won’t have active law enforcement

Now, he says he plans to re-introduce legislation he put forward last year that would require law enforcement to keep and publicize lists of officers with a problematic history: a Brady list.

"They know who the bad apples are," McKinney said of the lists. "And I think it's important for the public to know who those bad apples are as well."

The Omaha World-Herald first reported McKinney plans to reintroduce the bill, which he said Sen. Justin Wayne will co-sponsor.

What is a Brady list?
A 1963 U.S. Supreme Court ruling, Brady v. Maryland, said the failure to turn over evidence in a defendant's favor violates due process. Brady lists sometimes are referred to as Brady-Giglio lists, because the 1972 U.S. Supreme Court ruling United States v. Giglio said the Brady rule must include evidence related to the credibility of a witness, such as involved law enforcement, if the evidence may determine guilt or innocence.

Many law enforcement agencies and prosecutors' offices keep lists of problematic officers to ensure compliance.

But there’s little to no regulation around how prosecutors and law enforcement must ensure they follow that requirement.

That, plus the transparency, is a reason why the ACLU of Nebraska plans to support the legislation again. Lobbyist Spike Eickholt told 3 News Now the bill could "provide some sort of uniformity." He said it's not clear that all prosecutors' offices keep them.

Backlash at last year's hearing

Representatives from the Omaha Police Officers Association, Lincoln Police Union, the Nebraska Attorney General's Office and the Nebraska County Attorneys Association all testified against last year's version of the bill.

"This bill does absolutely nothing to enhance public safety," Anthony Conner told the Judiciary committee, according to a legislature transcript. "The clear purpose of LB883, in our view, is to publicly and punitively jeopardize the reputations and careers of those who serve in law enforcement."

Conner said an Iowa Legislature committee discovered an Altoona officer was put on a Brady list for stealing firewood in a college fraternity prank.

"Nationwide, there are no standards for what conduct can land an officer on a Brady list," he said, "Whether that conduct must be substantiated, whether the officer is notified, and whether they are entitled to any kind of hearing or appeal."

Arizona Brady list investigation

Our sister station in Phoenix has spent years investigating Arizona Brady lists.

ABC 15 reported earlier this year that more than 1,800 Arizona law enforcement officials are on Brady lists.

The station ran a multi-part investigation in 2020 on the lists. It requested and obtained Brady lists from across the state, created its own searchable database and unveiled law enforcement officials there "failed to adequately track dishonest and disreputable police officers."

Full Disclosure: Arizona fails to properly track problematic ‘Brady list’ cops

Officials in Nebraska, who opposed the legislation to make Brady lists public, would likely deny records requests to obtain the lists in Nebraska under an exemption in the state's public records law.

Omaha's list

The Omaha Police Department confirmed its Internal Affairs Unit keeps a spreadsheet "that identifies the officers/employees who have been determined to be Brady/Giglio which has a short description of the basis for the finding relative to that officer/employee."

"There are also disciplinary letters, disciplinary summaries or employee records that provide a further description of the conduct that led to the reason for their inclusion in the spreadsheet," wrote an OPD spokesperson. The department spokesperson said the spreadsheet and records would be withheld under the investigative exemption in Nebraska's public records law.

Mike Jensen, of the Nebraska County Attorneys Association, said in his opposition testimony at the hearing on McKinney's Brady bill earlier this year that he serves on the Douglas County Brady-Giglio Committee.

He explained four people sit on that committee, including two city prosecutors and two county attorneys. He said cases typically come from internal investigations and the committee reviews nameless versions of the documentation to determine if the involved officer should be added to the list. It requires two of four votes to add an officer to the list.

Greg Gonzalzes, while testifying in his wife’s lawsuit against the City of Omaha, named two officers that he claimed were on OPD's list, according to the Omaha World-Herald. One had been promoted to lieutenant, the paper reported.

"If they're getting promoted to high-level positions," McKinney said, "That's an issue."

Learn more: Jury decides against City of Omaha and Chief Todd Schmaderer in favor of former captain; city plans to appeal

More legislation

McKinney said he'll likely also reintroduce a bill to create an independent community oversight board.